In the latest update to an arduous legal battle over Berkeley’s landmark ban on natural gas hookups, a federal appeals court has struck it down, ruling in favor of California’s restaurant lobby.
Berkeley became the first U.S. city to prohibit natural gas infrastructure in new buildings in July 2019. The legislation, which went into effect at the beginning of 2020 for new construction permits, was put forward by councilmember Kate Harrison and cosponsored by councilmembers Ben Bartlett, Sophie Hahn and now-former councilmember Cheryl Davila. It was described then as a key component in the city’s effort to reduce carbon emissions driving climate change.
The California Restaurant Association, or CRA, filed a lawsuit in November 2019 against the City of Berkeley to block the legislation, arguing that the ban is “irresponsible” amid electrical outages and “does little to advance climate goals.”
In July 2021, a federal district court judge dismissed the lawsuit. The CRA challenged that decision, and on Monday a three-judge panel on the U.S. Court of Appeals for the Ninth Circuit unanimously ruled in favor of reversing that dismissal, deciding that Berkeley had overstepped its authority. The ruling was first reported by Bloomberg Law.
“By completely prohibiting the installation of natural gas piping within newly constructed buildings, the City of Berkeley has waded into a domain preempted by Congress,” wrote Judge Patrick J. Bumatay, one of two Trump appointees on the randomly assigned panel. (The third was a Reagan appointee.) Bumatay wrote that the Energy Policy and Conservation Act, or EPCA, preempts state and local regulations concerning the energy use of natural gas appliances.
When first creating the legislation, Berkeley sought to circumvent the EPCA by passing a building code prohibiting permits for new natural gas piping, as opposed to enacting a ban on the appliances themselves. But the court ruled that the scope of the EPCA goes beyond the regulation of natural gas devices — it also encompasses the building codes which regulate natural gas use.
Mayor Jesse Arreguín said the city is evaluating its next steps and that it’s still too soon to say whether it’ll petition for a rehearing before a larger panel of judges.
“It’s disappointing that the Ninth Circuit held that Berkeley, like many other cities around the country, cannot take common sense measures to protect its constituents from climate change,” Arreguín told Berkeleyside via text message.
Fight over gas stoves has fiery history
CRA President Jot Condie said in a 2021 press release that he believed the Berkeley ban represented the “start of efforts to ban or severely restrict all natural gas use.” Deputy City Attorney Chris Jensen seemed to confirm that assertion that same year, arguing before U.S. District Judge Yvonne Gonzalez Rogers that the purpose of the legislation “is to transition the city infrastructure away from natural gas.”
The CRA had to establish what is called associational standing to move its lawsuit forward, proving that one of its members had suffered an injury that could be redressed by a favorable decision. While no specific, Berkeley-based CRA member was cited by the lobbying group, it argued that the city ordinance would “imminently harm its members because it alleged that its members would open or relocate a restaurant in Berkeley but for the city’s ban on natural gas piping.”
The court ruled that that claim was enough to satisfy associational standing requirements, citing circuit precedent established in the 2013 Natural Resources Defense Council v. Environmental Protection Agency case, which held that it was enough that the government’s action increases the threat of future harm to [the organization’s] members.
In a CRA press release opposing the Berkeley ban, Los Angeles-based chef Robert W. Phillips likened a natural gas ban to taking paint away from a painter. The ban, according to Phillips, would “slow down the process of cooking and reduce a chef’s control over the amount and intensity of heat which is needed to prepare food appropriately.”
It’s a valid point. Wok hei, a crucial element of traditional Cantonese dishes, relies on the intense heat that gas stoves offer to provide the smoky char one associates with many of the cuisine’s most popular dishes. It can’t be faithfully replicated at restaurant scale on an electric range or an induction stove, according to food experts like J. Kenji López-Alt.
Still, at present, Berkeley’s nearly three-year-old ban has not had much of an impact on the local food scene. Most new restaurants that open in Berkeley and elsewhere in the Bay Area do so in pre-existing buildings, and typically in spaces that have acted as a restaurant in the past. There’s not a shortage of vacant restaurant spaces in Berkeley with gas infrastructure, and it’s unclear how many new buildings that have gone from permit to full construction since 2020 contain restaurant spaces to which this legislation would apply.
First Berkeley, next the U.S.?
The CRA has hailed the decision as a victory for the restaurant industry. Sarah Jorgensen, a lawyer representing the CRA, wrote in a statement that the ruling “sets an important precedent for future cases, especially with other cities considering similar bans or restrictions on the use of natural gas.”
Lawyer Daniel Carpenter-Gold, who submitted an amicus brief on behalf of the UCLA Environmental Law Clinic in February 2022 in support of the city of Berkeley, said he sees this case as part of a wider campaign led by the fossil fuel industry to prevent decarbonization.
“They’re pushing the law … in a way that I think goes well beyond what the actual law says,” Carpenter-Gold said, noting that if the ruling stands, it could have serious implications for cities’ ability to enact legislation to protect residents. Historically, states, cities and counties have been responsible for regulating last-mile utility access to customers. The court’s opinion appears to threaten that. “That’s one of the reasons why I think that this opinion should get a second look from the full Ninth Circuit,” he said.
More than 70 local and state jurisdictions have followed Berkeley’s lead in requiring or strongly incentivizing all-electric or fossil-fuel-free new buildings, wrote lawyer Amy Turner, senior fellow at Columbia University’s Sabin Center for Climate Change Law, which submitted an amicus brief with the National League of Cities supporting the city of Berkeley. Monday’s decision could leave some of those jurisdictions vulnerable to a challenge similar to the CRA’s.
It’s a possibility Harrison, who authored and touted the gas ban during her reelection campaign, appears to be bracing for. In a written statement sent to Berkeleyside, Harrison said that “I and the other advocates for the natural gas ban here and in the over 50 cities in California and other large cities such as New York stand firm in protecting our residents and the planet.”
Amid the ongoing legal battles, concerns over gas appliances continue to grow, as possible health issues have been raised regarding their usage. In 2022, a Stanford University study of 53 gas stoves across California found that the devices may leak methane gas — which can be deadly to humans in high doses — even when the burner is off. Several other studies have linked pollutants emitted from gas stoves to childhood asthma, though those results still require more analysis.
At the state level, the California Air Resources Board voted last fall to ban the sale of new gas furnaces and water heaters beginning in 2030. (Gas stoves are currently unrestricted by the board.)
Nationally, the Consumer Product Safety Commission, a federal regulatory body, announced in January that it was taking a preliminary step toward the potential regulation of gas stoves by making a request for information on hazards associated with them. The announcement sparked a wave of criticism from Republicans, including Ted Cruz and Ron DeSantis, and moderate Democrats, including Joe Manchin.
“The federal government has no business telling American families how to cook their dinner,” Manchin said in response to the request for information, saying that “the last thing that would ever leave my house is the gas stove that we cook on.”